Environmental Protection

Sackett v. Environmental Protection Agency

In Sackett v. Environmental Protection Agency, the Supreme Court will determine the proper test for ascertaining whether wetlands are “navigable waters” under the Clean Water Act.

Case Summary

In 2004, Michael and Chantell Sackett purchased a vacant lot about 300 feet from Priest Lake, one of the largest lakes in Idaho. Eight years earlier, the U.S. Army Corps of Engineers had determined that the lot contains wetlands which qualify as “navigable waters” under the Clean Water Act (CWA), meaning certain construction activities on the property would require a CWA permit. In 2007, without obtaining such a permit, the Sacketts began filling their lot with dirt and gravel to prepare for construction, and the Environmental Protection Agency (EPA) issued an administrative compliance order requiring them to restore the property to its natural state. The Sacketts sued in federal court, arguing that the EPA lacked jurisdiction over their property.

The case eventually made it to the Supreme Court in 2012. The Court permitted the Sacketts’ challenge to the EPA’s order to go forward but left open the question of whether the wetlands qualified as “navigable waters.” After further litigation, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the EPA, holding that the CWA did cover the wetlands on the Sackett’s property. The Ninth Circuit applied the test set forth by Justice Kennedy in his concurring opinion in Rapanos v. United States, concluding that the Sackett’s property constituted “navigable waters” because of the existence of a “significant nexus between the wetlands in question and navigable waters in the traditional sense.” In 2022, the Supreme Court agreed to hear the case for a second time to clarify the proper test for determining whether wetlands are “navigable waters” under the CWA.

CAC Brief

On June 17, 2022, CAC filed an amicus brief in support of the EPA, urging the court to affirm the ruling of the court below. Our brief refutes a distinct argument advanced by the Sacketts: that application of Justice Kennedy’s “significant nexus” test would extend the federal government’s CWA jurisdiction beyond the confines of Congress’s Commerce Clause power.

First, our brief explains that the Framers designed the Constitution to grant the federal government broad power to address issues of national concern. When the Framers gathered in Philadelphia to draft the Constitution, they had spent nearly a decade living under the failed Articles of Confederation, which created a central government so weak it was unable to coordinate responses to issues of national concern.  The Founders adopted Article I of the Constitution with the understanding that Congress would have the power to regulate all matters that could not be solved by any state alone.

To that end, the Commerce Clause, which authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” empowers Congress to pass laws regarding not just trade and other economic transactions, but a broader set of interrelated activities and affairs that require a coordinated, centralized response.  Under the original meaning of the Commerce Clause, any issue that posed a collective action problem or spillover effects that could not be adequately addressed by a single state alone could be regulated by Congress. Water pollution, including through the filling of wetlands that provide important filtering and other ecological functions to protect larger bodies of water, is the prototypical example of such a problem.

Thus, our brief culminates by explaining that the text and history of the Commerce Clause make clear that regulations of wetlands with a “significant nexus” to traditional navigable waters fall squarely within Congress’s power. As we explain, the Supreme Court has repeatedly held that Congress has extensive authority over the waters of the United States as “channels of interstate commerce.”  Justice Kennedy’s test itself, by instructing that the significant-nexus requirement is met only “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable,” necessarily ensures that the CWA only permits regulations of those wetlands that fit within Congress’s traditional channels-of-commerce authority. In other words, those wetlands that have no nexus—or a less than a “significant” one—to traditional navigable waters and thus might also have a more tenuous relationship to interstate commerce are excluded from the scope of federal regulation under Justice Kennedy’s construction of the CWA.

Furthermore, the significant nexus test also falls within Congress’s long-established power to regulate activities that substantially affect interstate commerce. Destruction of wetlands with a significant nexus to the channels of interstate commerce could impair the ability of those channels to support interstate commerce by rendering them unfishable, unable to support commercial recreation, or otherwise unfit for commercial activity. In this way, the federal government’s regulation of the pollution and filling of these wetlands is also justifiable as the regulation of an activity that substantially affects interstate commerce.

Case Timeline

  • June 17, 2022

    CAC files amicus curiae brief

    Sup. Ct. Amicus Br.
  • October 3, 2022

    Supreme Court will hear oral argument

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